Jon Slater v. Truro, Town of (SPR 20232648)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2023 SPR23/2648 Noelle Scoullar Executive Assistant Records Access Officer Town of Truro 24 Town Hall Road Truro, MA 01562 Dear Ms. Scoullar: I have received the petition of Jon Slater appealing the response of the Town of Truro (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 11, 2023, Mr. Slater requested the following records: ... all communications between the Town and the Provincetown Independent, its reporters, editors, publishers, and [identified] Board members from October 2019 to the current date. It also includes all communications among and between Town staff and officials as well as between them and the Town’s consultants and vendors regarding the Provincetown Independent, its representatives, staff, and Board regarding coverage or potential coverage of matters related to Truro water, housing, population, DPW as well as the Town of Truro’s policies and governance. The requested items include any and all communications (including information, documents, notes, emails, records of phone calls, and notes regarding conversations) located in Town files; in email, and in regular mail; and held by or discussed by relevant Town staff (electronically, or picked up hard copy) and held by or discussed by relevant Town of Truro staff. On August 17, 2023, Mr. Slater modified his request to include “... my request was intended for both incoming and outcoming communications [and] ...communications that may have been sent to or received from [identified individuals] using alternative email addresses as well as Provincetownindependent.org.” On August 18, 2023, Mr. Slater again modified the request to include certain key words, “...search on the following keywords... policies[,] policy[,] governance.” On August 21, 2023, One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Noelle Scoullar SPR23/2648 Page 2 November 16, 2023 Mr. Slater further modified his request to include “...policies, policy, ‘goals and objectives’, ‘Town Manager contract’, renewal, Whistleblower ... investigation, governance.” The Town provided Mr. Slater with an August 23, 2023 response. Unsatisfied with the Town’s response, Mr. Slater petitioned this office and this appeal, SPR23/2648, was opened as a result. Fee Estimate – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Town’s August 23rd Response In its August 23, 2023 response, the Town states that the number of hours to search for the records is 242 hours @ $25.00 per hour = $6,050.00. The Town further stated, “[t]his rate shall not exceed $25.00 per hour unless otherwise authorized by the Supervisor of Records.” The Town further advised, “[t]he Town of Truro has fewer than 20,000 residents as of the last U.S. decennial census (approx. 2,454), and therefore, you will be charged for all employee time necessary to respond to this request. See 950 CMR 32.07(2)(m)(2).” Although the Town has estimated that the process of producing the responsive documents for production will take 242 hours of employee time, it is unclear from the Town’s estimate if the 242 hours is entirely search time or if any of those hours are allocated for segregation, and redaction of the records. In addition, it is not clear what tasks are involved to prepare responsive records for production. As such, the Town must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable).

Noelle Scoullar SPR23/2648 Page 3 November 16, 2023 The Town must further confirm that $25.00 is the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested. I encourage Mr. Slater and the Town to communicate further in order to facilitate producing records efficiently and affordably. Mr. Slater may wish to narrow his request or include additional factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). For the reasons discussed above, I find the Town must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Town is ordered to provide Mr. Slater with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Slater may appeal the substantive nature of the Town’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jon Slater